PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MATTHEW DAVIS,

Party in Interest-Appellant,

and

LISA G. LEAK-DAVIS, and (Minor

Child), Ms. Malisa B. Davis, on

behalf of Husband and Father

Matthew Davis, #00270-131, and No. 98-7025

his Grants of Immunities,

Petitioner,

v.

WILLIE SCOTT, Warden; JANET RENO,

United States Attorney General,

Respondents-Appellees.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

James A. Beaty, Jr., District Judge.

(CA-98-437-1, CR-95-284)

Argued: April 6, 1999

Decided: May 19, 1999

Before WIDENER, MURNAGHAN, and MOTZ, Circuit Judges.

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Dismissed by published opinion. Judge Motz wrote the opinion, in

which Judge Widener and Judge Murnaghan joined.

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COUNSEL

ARGUED: Christopher Mizzo, Student Counsel, UNIVERSITY OF

VIRGINIA SCHOOL OF LAW APPELLATE LITIGATION

CLINIC, Charlottesville, Virginia, for Appellant. Gill Paul Beck,

Assistant United States Attorney, Greensboro, North Carolina, for

Appellees. ON BRIEF: Neal L. Walters, UNIVERSITY OF VIRGINIA SCHOOL OF LAW APPELLATE LITIGATION CLINIC,

Charlottesville, Virginia, for Appellant. Walter C. Holton, Jr., United

States Attorney, Greensboro, North Carolina, for Appellees.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

When the wife of a federal prisoner applied for habeas relief "on

behalf of" her husband, a magistrate judge dismissed her petition

without prejudice to the prisoner filing his own petition. Finding the

ruling not clearly erroneous or contrary to law, the district court

affirmed. The prisoner himself now seeks to appeal that ruling.

Because the prisoner lacks standing to appeal, we must dismiss this

case for lack of jurisdiction.

I.

On May 22, 1998, Lisa Leak-Davis (and her minor daughter)

applied for a writ of habeas corpus "on behalf of" her husband, Matthew Davis, a federal prisoner. Although Davis did not join the application, he did file a detailed affidavit in support of it.

For reasons not clear from the record, the case was referred to a

magistrate judge, who issued an order dismissing Leak-Davis's application without prejudice to Davis filing his own petition for habeas

relief. The judge reasoned that he could not "process" Leak-Davis's

application because it was not filed on the proper form and exceeded

the page limits set forth in the local rules. In addition to these "technical difficulties," the magistrate judge also noted "more substantive

reasons why this filing [wa]s not acceptable": Leak-Davis was not the

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proper party to file the application; the application purported to seek

relief pursuant to 28 U.S.C.A. § 2241 when it should have sought

relief under 28 U.S.C.A. § 2255; and the application was premature

because Davis's direct appeal was still pending at the time. See 28

U.S.C.A. §§ 2241, 2255 (West 1994 & Supp. 1998).

Davis filed timely objections to the magistrate judge's order; LeakDavis filed no objections. Davis objected to the magistrate's conclusion as well as to its jurisdiction to enter a final order without consent

of the parties. The district court "affirmed" the magistrate's order, dismissing the habeas application. The court reasoned that Davis was not

a party to the original application and that the magistrate's order was

not "clearly erroneous or contrary to law." See Fed. R. Civ. P. 72; 28

U.S.C.A. § 636(b)(1)(A) (West 1993). Davis seeks to appeal that ruling.

Davis maintains that we must reverse, arguing that the magistrate

judge lacked jurisdiction to dismiss Leak-Davis's application because

the parties never consented to the magistrate judge's authority to enter

final judgment. See 28 U.S.C.A. § 636(c) (West 1993 & Supp. 1998).

Davis contends that the district court's subsequent action, affirming

the magistrate judge's dismissal order, did not"cure" this asserted

error because the district court determined only that the magistrate

judge's order was not clearly erroneous or contrary to law, when de

novo review was required. See Aluminum Co. of Am. v. EPA, 663 F.2d

499, 501 (4th Cir. 1981). We can reach this question only if Davis,

the sole appellant before us, has standing to raise it.

II.

The threshold issue in this case is thus jurisdictional -- whether

Davis has standing to bring this appeal. Only if he does can we

address the arguments he makes on the merits. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 549 (1986) (holding that

because sole appellant had no standing "Court of Appeals was without [both] jurisdiction to hear the appeal" and "authority to decide the

merits"); see also Firestone Tire & Rubber Co. v. Risjord, 449 U.S.

368, 379 (1981).

It is well established that, "persons who are neither original parties

to, nor intervenors in, district court proceedings ordinarily may not

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appeal a judgment of the district court." Kenny v. Quigg, 820 F.2d

665, 667 (4th Cir. 1987). This rule, however, is not without exception.

For example, "a person who [1] ha[s] an interest in the cause litigated

and [2] [has] participated in the proceedings actively enough to make

him privy to the record may appeal despite the fact that he was not

named in the complaint and did not intervene." Id. at 668 (citations

omitted). Some courts have added a third requirement to this exception: that "the equities weigh in favor of hearing the appeal." EEOC

v. Louisiana Office of Community Serv., 47 F.3d 1438, 1442 (5th Cir.

1995); see also Binker v. Pennsylvania, 977 F.2d 738, 745 (3d Cir.

1992); SEC v. Wencke, 783 F.2d 829, 834-35 (9th Cir. 1986).

The question before us, then, is whether Matthew Davis, who was

neither an original party to, nor an intervenor in, this action, has

standing to pursue this appeal. We conclude that he does not. Indeed,

we believe Davis does not even satisfy the initial element of the

Kenny test -- he does not have the requisite"interest in the cause litigated."

Undoubtedly, as Davis maintains, he has a substantial interest in

his own habeas relief. So too Davis would have a substantial interest

in a habeas petition properly filed by a next friend. See 28 U.S.C.A.

§ 2242; see generally Whitmore v. Arkansas , 495 U.S. 149 (1990)

(discussing next friend doctrine). However, Davis does not have any

significant interest in the instant litigation because it consists merely

of a flawed petition erroneously filed by Davis's wife, who he concedes was not acting as a next friend in this case. See Brief of Appellant at 21 & n.11.

The magistrate judge's dismissal order and the district court's affirmance of it do not, in any way, affect Davis's right to seek habeas

review of his conviction. First, the magistrate judge was entirely without jurisdiction to enter his order dismissing Leak-Davis' application;

18 U.S.C. § 636(c) had not been complied with by the parties consenting to his entry of judgment in the case, and absent such compliance, he had no jurisdiction to enter an order dismissing the case.

Second, as the Government recognized at oral argument, the limitations period has not yet run on Davis's right to file a habeas petition.*

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*Davis's conviction was affirmed on August 28, 1998. See United

States v. Davis, 162 F.3d 1156, 1998 WL 558754 (4th Cir. Aug. 28,

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Finally, as the Government also conceded, any habeas petition Davis

files will not be subject to dismissal as successive because of LeakDavis's application since Davis never became a party to that application.

In sum, Davis has failed to demonstrate any way in which dismissal of Leak-Davis's application will affect him. We are not aware

of any case in which a non-party to a suit, who is not affected by the

decision in that suit, has been permitted to appeal a judgment in the

action. But cf. United States v. LTV Corp., 746 F.2d 51, 53-54 (D.C.

Cir. 1984) (denying non-party appeal because final judgment in case

did not foreclose other avenues of relief available to that non-party).

To the contrary, when courts have permitted a non-party to appeal,

they have repeatedly emphasized the impact of the appeal on the nonparty and the necessity of granting the appeal to preserve that nonparty's rights. See, e.g., Curtis v. City of Des Moines, 995 F.2d 125,

128 (8th Cir. 1993) (following Kenny and permitting non-parties to

appeal because they participated in proceedings before district court

and their interests were damaged by district court's order); United

States v. International Bhd. of Teamsters, 931 F.2d 177, 180, 184 (2d

Cir. 1991) (non-party that was bound by district court's order and

retained contractual interest in preserving rights had standing to

appeal); In re Eastern Sugar Antitrust Litig. , 697 F.2d 524, 527-28

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1998) (unpublished) (per curiam). A federal prisoner may file a habeas

petition anytime within one year from "the date on which the judgment

of conviction becomes final." See 28 U.S.C.A. § 2255. The statute does

not define "the date on which the judgment of conviction becomes final,"

nor have we yet addressed the issue. But, as the Government admits,

Davis has at least until August 28, 1999 to file a habeas petition.

Compare Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999)

(holding that a "judgment of conviction becomes final" for purposes of

§ 2255 either when the Supreme Court acts by affirming a conviction on

its merits or denying certiorari or when the 90-day period for applying

for certiorari expires) with Gendron v. United States, 154 F.3d 672, 674

(7th Cir. 1998) (holding that § 2255 statute of limitations begins to run

when appeals court issues its mandate in the direct appeal if prisoner

does not file a certiorari petition).

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(3d. Cir. 1982) (non-parties with ties to district court proceedings and

aggrieved by district court's judgment had standing to appeal).

Finally, contrary to Davis' suggestion, his asserted systemic interest in correcting perceived defects in the judicial process does not

constitute the type of interest contemplated by Kenny. See 820 F.2d

at 668. Indeed, if the Kenny exception allowed any non-party with a

systemic interest in litigation to appeal an order of the district court,

the exception would certainly swallow the rule.

III.

Because Davis is not a party to, nor an intervenor in, this action,

and because he does not fall within the Kenny exception to the general

rule against non-party appeals, Davis does not have standing to bring

this appeal. Moreover, since Davis lacks standing, we cannot consider

the merits of his underlying claims. See Bender , 475 U.S. at 549;

Firestone, 449 U.S. at 379. Accordingly, we dismiss the case for lack

of jurisdiction.

DISMISSED

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